Commonwealth Court Sends Mixed Messages on PA Voter ID Law

JURIST Guest Columnist Sara Rose, staff attorney at the American Civil Liberties Union of Pennsylvania argues that the state of Pennsylvania has made it difficult for voters to obtain the requisite voter identification for the upcoming election and that the law was properly enjoined...

"When voting in Pennsylvania this Election Day, November 6th, you will be asked but not required to show a photo ID."

That is the convoluted message on advertisements sponsored by the Commonwealth of Pennsylvania to raise awareness about a law that will not actually be in effect this November because a Pennsylvania Commonwealth Court judge suspended its enforcement. However, the mixed signal these advertisements convey is nothing new: the state has twisted itself into knots to try to make it appear that a law designed to disenfranchise voters does not actually achieve what it was intended to do.

Act 18, popularly known as the "Pennsylvania voter ID law," requires voters to show an acceptable form of photo ID to poll workers before they are allowed to cast a ballot. The votes of people who do not have photo ID that meets the law's strict criteria will not be counted unless they obtain proper identification and show it to their county board of elections within six days of the election.

To avoid claims that the law amounts to a poll tax, legislators included a provision in the law requiring PennDOT to issue non-driver photo identification cards to any registered elector who declares under oath that he or she does not possess a qualifying photo ID and needs it to vote. The problem with this provision is that, at least since September 11, 2001, the process for obtaining a non-driver photo ID  which can be used to board commercial airplanes  is, as the Pennsylvania Supreme Court described, "rigorous" [PDF]. Applicants must present a birth certificate with a raised seal, a social security card and two forms of documentation showing current residency. As the plaintiffs in the lawsuit challenging the voter ID law demonstrated, that is an impossible feat for some people who are otherwise entitled to vote under Pennsylvania law.

So, on the eve of the trial of this case, the Pennsylvania Department of State (DOS) revealed plans to issue "voting-only" photo ID cards. These DOS ID cards would only be issued to persons who: (1) are registered to vote; (2) lack an acceptable form of photo ID for voting; and (3) can produce two proofs of residency. They were also only available from PennDOT Drivers Licensing Centers.

Based largely on the Commonwealth's claim that the DOS IDs  once available  would ensure that voters unable to obtain PennDOT IDs would not be disenfranchised, Commonwealth Court Judge Robert Simpson ruled on August 15 that the Voter ID law could be carried out as planned for the November 2012 elections. That ruling came despite the Commonwealth's pre-trial stipulation that it had no evidence of in-person voter ID fraud (the kind the law was intended to prevent) and that such fraud was unlikely to occur in the November election, even in the absence of the law.

An appeal was filed with the Pennsylvania Supreme Court, and on September 18, the court remanded the case back to the Commonwealth Court, instructing [PDF] Simpson not to rely on his "mere predictive judgment based primarily on the assurances of government officials" and instead requiring him "to make a present assessment of the actual availability of the alternate identification cards on a developed record in light of the experience since the time the cards became available," considering whether "the procedures being used for the deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards." If liberal access to the DOS ID cards was not available, or if he was not convinced that "there will be no voter disenfranchisement" as a result of the Voter ID law, then Simpson would be "obliged to enter a preliminary injunction."

When, on August 27, the cards were finally rolled out, the process was as seamless as one would expect given the overriding intent of the voter ID law. In other words, obtaining a DOS ID card was, for many, a Kafkaesque excursion into PennDOT bureaucracy involving multiple trips to Drivers License Centers only to find out that they were closed, were not issuing IDs that day, that employees were unable to locate the voter's registration or that the employees working there were wholly unfamiliar with the process for issuing the new IDs.

The experience of the plaintiffs in the case is illustrative. Nadine Marsh made two trips to PennDOT with her daughter to obtain the voting-only ID, only to return home empty handed both times. Marsh, who had been unable to qualify for a PennDOT ID because there is no record of birth (making it impossible for her to produce the required birth certificate), lives with her daughter and lacked the requisite proofs of residency. After sending three e-mails to PennDOT, her granddaughter was finally informed that a family member could submit a form verifying Marsh's residency in lieu of the required documents. After confirming that the PennDOT location nearest to her home was open on Mondays, Marsh traveled 40 miles roundtrip with her daughter only to learn when she arrived that the Center did not issue IDs on Mondays. When she returned a few days later, she was told by a supervisor that she would have to wait for paperwork from Harrisburg and then return on a third trip to actually get the ID. Six days after that trip, she had still not received the required paperwork.

Unsurprisingly, by the time of the second hearing on September 25, fewer than 1,350 DOS IDs had been issued, barely making a dent in the estimated tens to hundreds of thousands of registered voters who lack an acceptable form of photo ID. Simpson expressed disappointment in the state's failure to issue more IDs and ruled that based on the record before him the process for obtaining a DOS ID was sufficiently burdensome that he could not conclude that there existed "liberal access" to the new IDs or that voters would not be disenfranchised as a result. He enjoined the law's requirement that voters show photo ID to cast a regular ballot, but allowed the state to utilize the process in place during the 2012 primary in which voters would be asked, but not required, to show ID. He also allowed the state to continue its efforts to educate voters about the ID requirement  thus the somewhat mystifying advertisements informing voters that they will be asked for photo ID at the polls but not compelled to show it.

The temporary injunction is in place only for the 2012 general election. A full trial will be held before Simpson to determine whether a new procedure for issuing the DOS IDs  announced by the Commonwealth on the first day of the second hearing  provides for the liberal access that the Supreme Court has said is necessary to avoid disenfranchisement. Under the new process, the requirement for two proofs of residency has been eliminated and applicants are no longer required to prove that they have tried, and failed, to obtain a PennDOT ID before they can be eligible for the DOS ID cards.

Thus, under the new process, all one has to do to obtain a state-issued photo ID for voting is to fill out an application form and affirm that they are a registered voter and have no other form of identification. In other words, if you swear you are who you say you are, you get an ID that is solely for the purpose of voting. Which raises the question: why, in such tough budget times, is the Commonwealth spending money to create an altogether new form of ID when it could simply require voters who lack ID to sign that same affirmation at their polling place? Because the law was never about voter fraud in the first place.

Sara Rose is a staff attorney for the ACLU of Pennsylvania. She litigates a broad range of civil liberties issues, including freedom of speech, religious liberty, and student rights, and helps coordinate the organization's nonpartisan election-protection efforts